Topic 5: Job Security and business reorganisations COPY Flashcards

Question

Sothern v Franks

Answer 1

this concerned a partnership secretary in a solicitor firm who said “I am resigning” in an ongoing dispute. **CA in absence of other evidence, then the natural meaning of the words could not be overridden by what a reasonable employer would have assumed. Therefore, if you do say I am resigning, -you are judged by the standards of the reasonable employer.** **Fox J -** The essential question in the case is the meaning to the given to those words. Are they ambiguous or are they unambiguous? The Industrial Tribunal, as I have mentioned, held that if the words constituted a resignation in unambiguous terms that was the end of the matter. = **ambiguoity is important** He accepted that there might be exceptions: ‘this is not a case of an immature employee, or of a decision taken in the heat of the moment, or of an employee being jostled into a decision by the employers.’ Relevant: * Sothern was not an unexperienced employee; and * this was not in the heat of the moment. Kwik -Fit v Lineham distinguished

Answer 2

Monie v Coral Racing

Answer 3

In late 1990s, the EAT sought to replace Iceland with a basic test of fairness saying Iceland test was perverse. But the CA rejected this in Madden and Foley

Answer 4

Crticisms of the unfair dismissal categories

Answer 5

Reilly v Sandwell MBC [2018] UKSC

Answer 6

Also, the mere fact of a redundancy situation does not mean that redundancy is the principal reason for dismissal - look out for other reasons for selection for redundancy that may be a basis for claiming that it is an automatically unfair reason for dismissal (with no qualifying period) would have to show that this is the principal reason for dismissal and not redundancy:

Answer 7

Damages are the only remedy available if a wrongful dismissal claim is brought in the ET, only up to £25,000. The civil courts can award damages too, with no upper limit, and have additional powers of remedy

Answer 8

For the purposes of calculating continuous employment, the EDT will be extended if the employee does not receive the statutory minimum period of notice: it is the date the employee is informed (in this case by her solicitor) even if a day earlier than the day she reads the dismissal letter. * Employees solicitor informed them that they were told by employer that the letter was in the post. The next day they got the letter, this made a different. Held: fact solicitor told them the day before meant they had been informed.

Answer 9

**Unclear whether a tribunal is asserting its own opinion or not** assessing whether the ET has substituted its own view is difficult. Here the EAT and CA reached different conclusions on whether tribunal had substituted its own opinion

Answer 10

Yes ## Footnote It is also possible to bring a claim under the EA, if it is alleged that the redundancy decision or procedure follow is directly or indirectly discriminatory because of a protected characteristic.

Answer 11

GM Packagingv Haslem

Answer 12

the EAT overturned the tribunal’s finding of a fair dismissal when the claimant was selected for redundancy, notwithstanding that she had scored higher than the other person at risk. The EAT held that the decision to select someone for redundancy had to be sufficiently objective and must “withstand close scrutiny”. A criterion such as “the overall requirements of the business” was found to be too subjective. It was a “statement of the obvious”. The object of any redundancy exercise is to retain those employees who are best equipped to enable the company to trade profitably in the future. Those employers who wish to use the criterion “the overall requirements of the business” would, said this tribunal, have to place all members of the workforce into the selection pool.

Answer 13

Clarke v Eley

Answer 14

Criticisms of the band of reasonable responses test?

Answer 15

Not necessary at stage 1 whether employee is also in repudiary breach of the contract Even if employee had committed acts of misconduct, , if employer is in breach this is still a constructive dismissal. The fact of employee’s misconduct will be relevant at a later stage, mainly the damages.

Answer 16

‘place where the employee was so employed’ – scope of contractual mobility clauses: **Facts:** Employees terms and conditions required him to work at any other establishment. He refused to move to new location and was dismissed. Held: Accepter employer’s argument that the need for employees had not ceased in the placed where he was employed because he was obliged to work anywhere under the terms of the contract. Found that the employee’s refusal to work in another office amounted to disobedience; employee was therefore fairly dismissed for misconduct and was not entitled to compensation.

Answer 17

**Redundancy** Motive not relevant, following moon v homeworthy.

Answer 18

**Redundancy**– what is ‘work of a particular kind’? shift from job function/contract tests – replaced with a factual test. Two questions: 1. Has there been a reduction in the workforce because of a business reorganisation? 2. Is the dismissal connected to that reduction? If yes to the factual and causation question then there is a redundancy - this was approved by the HL in Murray.

Answer 19

British Aerospace v Green

Answer 20

An employer may not be able to rely upon a resignation made by an employee which had obviously been made in the heat of the moment. Constructive dismissal might still be a possibility. 1. If words are unambiguous then prima facia, employer is entitled to treat them as such, but personalities are an important consideration 2. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: These we refer to as `special circumstances’. 3. Where `special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse **Different from Sothern:** * ****threw keys on the counter and drove off, the next day he asked for outstanding wages and said he would go to a tribunal. **Facts:** Employee at kwik fit was manager of the garage and on the way home he popped into the office and used the toilet. He was seen and employer decided to issue him with a written warning in front of all his colleagues, he reacted badly, he threw down his keys on the counter and drove off. The next day he asked for his outstanding wages and said he would go to tribunal. Was employer entitled to treat this as a resignation. Held: no. Employer should have allowed a reasonable time this was the heat of the moment should have made further enquiries as to whether resignation was intended.

Answer 21

Difference between Wrongful dismissal and unfair dismissal?

Answer 22

breach of duty of mutual trust and confidence _always_ amounts to a fundamental breach.

Answer 23

**Written statement:** Where an employer uses an incorrect “label” at the time of dismissal this does not prevent another reason for dismissal being proved at the industrial tribunal hearing. * Employer knew reason for dismissal, but did not give that reason to the employee - it was misdescribed. **EXCEPTION:** I sufficient evidence that employer is simply being kind to the employee by givign a false reason. But this is unlikely to be accepted today because of the greater emphasis in transparency. **FACTS:** At the industrial tribunal hearing Mr Abernethy relied on the fact that he had been told he was being dismissed for redundancy when it turned out there was no redundancy situation. In fact he was being dismissed because the employer had wished to transfer him from head office to a site, and he had refused. Held: The Court of Appeal rejected the appeal and held that an incorrect “label” used by an employer at the time of dismissal does not prevent another reason being proved at the industrial tribunal hearing. The reason for dismissal is the set of facts known to, or the beliefs held by, the employer, which cause him or her to dismiss the employee. The reason given at the time of the dismissal may be evidence of the real reason, but does not necessarily constitute the real reason.

Answer 24

Safeway Stores v Burrell

Answer 25

Smith v Hayle

Answer 26

Appellant called to disciplinary meeting and told that he would be dismissed for misconduct. He negotiated a retirement package and left on its terms. The Tribunal found that he had left voluntarily and was not dismissed. Held that the Tribunal was entitled, having asked the correct question – which caused him to leave – to find that he had left because of the package

Answer 27

1. Asserting individual rights 2. trade union activities 3. other forms of colelctive consultation

Answer 28

proportionality should be applied if human rights infringed Guidance of European court of human rights. Bus driver who was dismissed because of concerns about him and was this a dismissal because of religion or belief (political belief), this case was brought in as a PC. He sought unfair dismissal and if he was able to show he was dismissed contrary to freedom of association of political party, this would be a breach of the convention and any dismissal should have been proportionate.

Answer 29

Kent CC v Gilham

Answer 30

**Misconduct case:** not a first offence or repeated minor misconduct – should have been given a written warning * It would not be within a band of reasonable responses if it was a first offence that was not too serious or repeated minor misconduct. * At the very least, there should have been a written warning, warning agaisnt dismissal.

Answer 31

**Facts:** claimants worked at an abattoir, usually working in a slaughter hall, but under their contracts, they could be required to work elsewhere in the factory too. For economic reasons, the employer decided to cut down its slaughtering activities so made the claiamnts redundant. They argued that the concept of diminishing requirements for employees to do "work of a particular kind" should be construed to include the work they could do under their contracts. This would mean that a much larger proportion of the employer's workforce - not just those in the slaughtering hall -would be up for redundancy. However, the HL rejected this argument, holding that tribunals should focus primarily on what the employees did in fact, and not on their work defined int he cotnract of employment.

Answer 32

**Potentially fair reasons: conduct** ## Footnote They were a school manager who was asked to undertake teaching – they refused and was dismissed. Could employer rely on misconduct as a potentially fair reason? Held: yes but found applying reasonableness test (Stage 4) that it was unfair because they were not obliged to obey.

Answer 33

* *limited to employees* – ERA s94(1) - contrasts with claims for wrongful dismissal which, based on the contract, can be brought by workers as well as employees. (Note that under the 1994 Extension of Jurisdiction Order only employees have the right to bring a wrongful dismissal claim in the ET; a worker would have to litigate his/her claim in the civil courts). * *subject to continuity rules* - qualifying period of two years in most cases: ERA s108. Contrast that with wrongful dismissal claims and EA claims which have no continuity requirement. * *normally subject to a three-month time limit for bringing claims*. By contrast wrongful dismissal claims are subject to the normal limitation periods for contract actions (6 years) unless they are litigated in the ET in which case a three-month time limit will also apply (1994 Extension of Jurisdiction Order, Art 7). * *subject to a cap on the compensatory award*. There is no cap on the amount awarded for breach of contract in a wrongful dismissal action or in respect of an EA claim.

Answer 34

Port of London Authority v Payne

Answer 35

Wincanton v Stone

Answer 36

Preliminary steps to take when discussing unfair dismissal?

Answer 37

1. It indicates that tribunals are not supposed to overturn employers' decisions just because they disagree with them. The Iceland formulation helps to remind tribunals of their proper role. It makes the system more predictable: employers know that if they stay in line with generally accepted practises, their dismissal decisions are likely to be upheld.

Answer 38

Is procedural fairness importatant in misconduct cases?

Answer 39

Departure from contractual and return to geographical. Thomas was based at the Coventry depot. Her job was to travel round the area and collect money from fruit machines. The employer wanted to close the depot but wanted Thomas to move to the North East Birmingham depot: Her clause contained a contractual mobility clause. She tried to work from the requested location, but it took too long to commute. She resigned and claimed constructive dismissal. EAT Held: She had been constructively dismissed by reason of redundancy. Her place of employed had closed. The offer of work at the alternative depot was not suitable alternative employment.

Answer 40

*Delaney* v *Staples* ## Footnote ***HOUSE OF LORDS***

Answer 41

Bombardier

Answer 42

Madden and Foley

Answer 43

Reductions in compensation can be made where there has been contributory fault on the part of the employee, s123(6):

Answer 44

**Procedure** 1. **written statement** An employee’s dismissal can only be justified on facts and reasons known to the employer and in his or her mind at the time of dismissal. Evidence about the employee which comes to light after the dismissal cannot be used to justify dismissal, however damning that evidence might be. Held by **house of lords** :The legislation required an employer to justify a dismissal by demonstrating first the reason for the dismissal and second that the employer acted reasonably in dismissing the employee because of this reason. The legislation limited the employer to reliance on the original reason for dismissal.

Answer 45

employee expressed willingness to negotiate consensual termination – had been a repudiatory breach by employer – employee could still resign and claim unfair dismissal.

Answer 46

The Court of Appeal (CA) confirmed that the position was that, in cases where there may have been an earlier repudiatory breach which has been affirmed by the employee, if there is subsequently conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier repudiatory breach. The employer’s further act can be described as “reviving” the employee’s right to terminate the contract.

Answer 47

Potentially fair reasons Burden of proof the employer must show there is a fair reason for dismissal At this stage of the inquiry into fairness the employer must show there is *a fair reason for dismissal* – it should not be confused with whether he/she acted *reasonably* when dismissing the employee for that reason which is considered at the next stage.

Answer 48

O’Brien v Prudential Assurance

Answer 49

Johnson v Unisys

Answer 50

The parties cannot contract out of the unfair dismissal legislation, but they can reach a settlement agreement in which the employee agrees not to litigate their claim subject to independent legal advice. **Facts:** An employee allowed to take leave beyond normal holiday entitlements to visit family abroad. Employer required them to sign statement that if she does not return to work the contract would be terminated. She could not return by the date set because she was unwell, but employer treated this as end to contract, she claimed unfair dismissal – was this a settlement agreement. Held: she claimed unfair dismissal, agreement was void because it tried to contract out the unfair dismissal act.

Answer 51

Redfearn v UK

Answer 52

If employee resigns without notice for no good reason, this is a summery dismissal and the employer does not need to pay them.

Answer 53

**Misconduct case:** where a serious allegations of criminal behaviour. There must always be the subject of the most careful investigation. While it is unrealistic and inappropriate to require the safeguards of a criminal trial, a careful and conscientious investigation of the facts is necessary * EAT said it would be unrealist and inappropriate if the same standards were applied as in a criminal law case, but there must still be a careful and conscientious investigation.

Answer 54

was the repudiatory breach a reason for the resignation? Yes, is constructive dismissal, does not necessarily have to be the principal reason for the resignation.

Answer 55

From time to time ETs fall into the trap of substituting their own views instead of applying the ‘band of reasonable responses’ of the ‘reasonable employer’ test.

Answer 56

there is scope for justifying direct or indirect **age discrimination** if the scheme adopted is proportionate to its legitimate aims under the permitted exceptions in the EA: * – length of service criterion upheld. Although discriminated against young people was a proportionate means of achieving legitimate aim. * Length of service criteria may be a proportionate responce so not UD

Answer 57

**Misconduct case:** band of reasonable responses test compatible with protection of human rights. * Lord Alias found the band of reasonable responses test was compatitble with human rights. Human right issue is engaged and the culpuability of the employee must be investigated with respect to the consequences for the employee. * The band of reasonable responses test allows for a flexibel test to be adopted where there is more serious consequences.

Answer 58

The terms of the contract can enhance the payment for redundancy: **Facts:** THE CLAIM was for 60,000 pounds, employer questioned the provision, it was not in the handbook but of website of company where they found employee benefits and rights section. Held: because it was on employer website it was deemed to be a contractual clause.

Answer 59

– restarting disciplinary process The hospital was ordered to start the disciplinary process.

Answer 60

What is unfair dismissal?

Answer 61

Chabra v West London SUPREME COURT

Answer 62

* WD based on breach of contract (applies to workers as well as employees) - not an evaluation of fairness of dismissal – action in ET or civil courts * WD no qualifying rule - workers must use civil courts – contract claim – employees can go to ET or civil courts * UD limited to qualifying employees – 2 years continuity * UD based on reasonableness of the decision to dismiss for the potentially fair reason in question – ET * UD - 3 month limit for claims; WD – 6 years in civil courts * UD – cap on compensation (lower for most employees) – no cap on damages for WD

Answer 63

**Potentially fair reason: SOSR** ## Footnote Failure to reveal history of mental illness when asked at job interview. Found: SOSR

Answer 64

Is it important to be a dismissal under ERA s95(2) or s95(1)

Answer 65

A dismissal by reason of redundancy may be unfair under ERA s98(4) * applies band of reasonable responses test to the dismissal of the employee claiming unfair selection criteria have been used – reasonableness of the steps taken to choose the applicant rather than some other employee for dismissal – criteria must be objective not based on ‘personal whim’. **Facts:** New approach. It was established there was a trade union representing employees but not properly consulted before decisions on redundancy’s made. Reasonable employer recognising trade union would consult trade union in context of making redundancies so failure to do so was outside band of reasonable responses leading to UD. Analogous to procedural fairness. If any breach in procedural fairness could lead to unfair dismissal (polkey).

Answer 66

Murray v Foyle

Answer 67

Frustration will be ‘rare occurrences’

Answer 68

**Potentially fair reason: "some other substantial reason" SOSR** * residual category but does not have to relate to the other listed reasons in s98(2) * reason can be based on general business considerations but not to be blurred with redundancy. This is an old case. **Critisisms:** it goes against the whole purpose of the legislation to provide employment security (SOSR sections).

Answer 69

what is practicable? It is not the same as possible. * This is not the same as not possible, it is whether it is practicable. * In this case, 12 trade union stewards were dismissed found they had been unfairly selected for redundancy. The tribunal had ordered their reengagement. * CA said reengagement was possible but not practicable because employer although rejected employers defence of no vacancies, there were relevant economic situations. The employers business situation might be taken into account.

Answer 70

* The respondent employer's failure to give the appellant a payment in lieu of notice when he summarily dismissed her did not amount to a deduction from wages * A payment in lieu of notice is not “wages” within the meaning of the Wages Act where it relates to a period after the termination of the employment. Wages are payments in respect of the rendering of services during the employment, so that all payments in respect of the termination of the contract are excluded save to the extent that they are expressly included under s.7(1). Thus, payments in respect of “garden leave” are “wages” within the meaning of the Act since they are advance payments of wages falling due under a subsisting contract of employment. But all other payments in lieu, whether or not contractually payable, are not wages since they are payments relating to the termination of the employment and not to the provision of services under the employment. * Accordingly, payments in lieu are not wages where, as in the present case, without the agreement of the employee, the employer summarily dismisses the employee and tenders a payment in lieu of proper notice;

Answer 71

Gibbs v Leeds

Answer 72

For the purposes of calculating continuous employment, the EDT (effective date of termination) will be extended if the employee does not receive the statutory minimum period of notice: The effective date of termination is the date on which the employee knows he or she is being dismissed. * Simply having a date on a letter, but if letter is not received until a week later, and can be shown as evidence, then it will be the later date. **FACTS:** On the day the letter arrived at M’s home (9 November 1995), M was away on a trip and he did not return and read the letter until the next day. 1. The EAT held that the effective date of termination of a contract of employment cannot be earlier than the date on which an employee receives knowledge that he is being dismissed. 2. A tribunal is likely to assume that letters usually arrive in the normal course of post and that people would normally open their letters promptly after they arrived. An employee would not therefore be able to postpone dismissal by deliberately avoiding opening the letter.

Answer 73

Pay v Lancashire

Answer 74

BHS v Burchell

Answer 75

Shook v Ealing

Answer 76

Kuzel v Roche

Answer 77

What is dismissal in the context of an EA 2010 claim?

Answer 78

Shaw v CCL

Answer 79

Involves a fundamental breach of the terms of the contract such that the employee can regard that as justifying them as resigning and bringing a claim for US.

Answer 80

**Wrongful dismissal** Mitigation - a successful claimant must mitigate his/her loss, for example, by looking for alternative employment * failure to mitigate loss may lead to reduction in award of damages. * Question of fact by ET or court to ask what a reasonable job for the employee to take based on their status.

Answer 81

Buckland v Bournemouth University [2011] EWCA

Answer 82

Right to discovery of documents about selection criteria.

Answer 83

CA – rejected approach in Haddon. The HL in Madden re asserted the Iceland test. HL said in Madden, that Hadden was an unwarranted departure from authority – parliament hadn’t amended the legislation.

Answer 84

Subject to the **qualifying conditions,** what are the five main questions to be asked by an ET in an unfair dismissal claim

Answer 85

**Redundancy** what is ‘work of a particular kind’? * dismissal for refusing to work new shift system – not redundancy, no diminution of requirements for the employees’ work – _job function test_

Answer 86

Sedley said: normally the best way is to infer that the employer acted unreasonably because it is in no position to justify its actions.

Answer 87

Nelson v BBC (No. 2)

Answer 88

It is especially important. The ACAS Code para 5-30 talks about the need: * need for written warnings before dismissal is contemplated depending on the gravity of the allegations, * an investigation, * a fair hearing with representation and a * right of appeal. **WHAI**

Answer 89

Sainsbury’s v Hitt

Answer 90

Ssekisonge

Answer 91

it was alleged that a school employee failed to disclose a relationship with a person convicted of serious criminal offence – ET – fair dismissal. SC - Lady Hale (obiter) questioned the appropriateness of the reasonableness test in *BHS* v *Burchell* and also whether it could be a fair dismissal if the alleged conduct was not a breach of contract.

Answer 92

Whitwood Chemical v Hardiman

Answer 93

can take account of prior incidents that have been recorded where no disciplinary action was taken. If evidence that these incidences took place. Ms Pillar, a nurse, was dismissed for gross misconduct after a third patient safety incident (PSI). Ms Pillar had previously been responsible for two similar PSIs; However, the manager who investigated the third PSI included in his report details about the two previous PSIs. This investigation report was used at the disciplinary hearing which resulted in Ms Pillar’s dismissal. The EAT said this not a case of “totting up” warnings (as no prior formal warnings had been given), but of an overall lack of clinical competence by Ms Pillar.

Answer 94

Robinson v Bowskill

Answer 95

Alternatively, the employee can seek damages for breach of a contractual disciplinary procedure which must be followed before notice of termination may be given validly. In which case, the time such a process may have taken, had it been followed, can be added to the notice period when determining the period in respect of which damages are to be assessed. Where the employer has terminated the contract without giving notice, all the claimant can expect is to have worked out his or her notice period and earned a wage during that time. **Facts@** In this case, the employer dismissed the employee on disciplinary grounds without going through the disciplinary procedure laid down in the centract of employment. The court accepted that the disciplinary procedure bound the employer and was not displaced by the employer's power to dismiss the employee with notice. The court held that the appropriate measure of damages was the pay the employee could have expected to receive for the time it would have taken to conduct the disciplinary process and to dismiss him with notice. In effect, the contractual disciplinary procedure served to lengthen the employee's notice period. **Criticisms:** the measure of damages assumes that the employee would have been dismissed. This undervalues the role of the disciplinary process, because if the employer had given the employee a hearing, it might have emerged that the accusations against the employee were false. On this view, it would be appropriate to award the employee additional compensation to reflect this.

Answer 96

Yes/ it is only under ERA s95(2) that entitled the employee to a redundancy payment.

Answer 97

**Potentially fair reasons: Capability** capability does not have to apply to every aspect of an employee’s contractual duties. need to show dismissed on bases of capability that they were not capable of doing the job to which they were primarily employed. This is a factual enquiry for the tribunal.

Answer 98

‘constructive dismissal’

Answer 99

reasonable to dismiss after accumulated warnings. lead to a reasonable employer after a number of warnings to dismiss.

Answer 100

* trust and confidence must remain * damages alone are an insufficient remedy

Answer 101

Constructive dismissal - Must be evidence of repudiatory breach of contract by the employer. The employee must have resigned in response to that breach and employee must not have waived or affirmed the breach – leading case test for constructive dismissal is a contractual test **Denning -** “significant breach going to the _root_ of the contract of employment, or which shows that the employer no longer intends to be bound by one of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”. * Because it is a contract test and link between conduct and resignation (constructive resignation), it is a causation test that must be shown: **denning shows the causal link**

Answer 102

test for constructive dismissal is a contractual test not a reasonableness test – once a repudiatory breach has been committed by the employer it cannot be “cured” – it is up to the employee to affirm or reject it – could delay resigning until after internal inquiry. Can delay their resignation so long as there is still a causal link. **Facts:** Buckland (professor) was a harsh marker and failed students who took his course,the exam papers were then moderated and some marks changed. Buckland thought this process had undermined his authority and breached the implied term of mutual trust and confidence in his employment. The tribunal agreed. Buckland waited until internal enquiry which university organised. The enquiry criticised conduct of the colleagues, he resigned anyway. CA held: once a repudiatory breach has been committed it is up to injured party to decide whether or not to terminate contract or affirm. Jacob LJ dissented in part, finding that a party could not cure a repudiatory breach: ‘I do not share Sedley LJ’s regret in holding that a repudiatory breach of contract, once it has happened, cannot be ‘cured’ by the contract breaker. Once he has committed a breach of contract which is so serious that it entitles the innocent party to walk away from it, I see no reason for the law to take away the innocent party’s right to go. He should have a clear choice: affirm or go. Of course the wrongdoer can try to make amends – to persuade the wronged party to affirm the contract. But the option ought to be entirely at the wronged party’s choice.

Answer 103

Edwards + Botham SC Joint cases

Answer 104

Lewis v Motorworld Garages

Answer 105

EAT laid down a test of whether an employer acted reasonably. The EAT has laid down a general test based on the response of the ‘reasonable employer’ * ET must not substitute its own approach to such a decision but instead will ask: did the employer’s response fall within a ‘band of reasonable responses’ to the employee’s conduct which a reasonable employer might have adopted? – respect for autonomy of managerial discretion - no fixed standard of reasonableness:

Answer 106

Western Excavations reaffirmed by the CA in Bournermouth University v Buckland. Held: the employee is entitled to resigna nd bring proceedings for unfair dismissal where the employer has committed a repudiatory breach of fundamental term of the contract of employment (Denning).

Answer 107

**Redundancy** what is ‘work of a particular kind’ * withdrawal of travel concession for distance employees – did not alter the requirements of the business – not a redundancy **Facts:** withdrawal of travel concession for distance employees – did not alter the requirements of the business – not a redundancy

Answer 108

Only before an ET. If ET finds it unfair, they will award a statutory remedy (in most cases compensation). The employer can dismiss but they must do so fairly. It is mandatory in that it is unlawful for an employer to exclude unfair dismissal by a contractual term.

Answer 109

He emphasissed that while a constructive dismissal will often also be unreasonable, the two tests should be kept separate. Once a repudiatory breach has occured, it cannot cure the breach. Buckland did not lose the right by waiting to see what would happen at the enquiry,

Answer 110

Notcutt v Universal Equipment

Answer 111

Express Medicals v O'Donnell

Answer 112

London Ambulance Service v Small

Answer 113

Atomic Energy v Claydon

Answer 114

work related stress shown to be a breach of – breach of trust and confidence term

Answer 115

What is the leading authority for using the reasoning drawn from the law of contract for constructive dismissal?

Answer 116

Addis ## Footnote **House of Lords**

Answer 117

What is wrongful dismissal?

Answer 118

As well as his/her wages, the successful claimant may be able to claim for the value of fringe benefits during the notice period (plus any *Gunton* extension) – provided there is a contractual entitlement to those fringe benefits, see:

Answer 119

**DAPRR** 1. Has the employee been dismissed? 1. Fact of dismissal – not looking at fairness. 2. Is the reason for the dismissal one that is automatically unfair? 1. Look for automatically unfair reason, if there is an automatically unfair reason you skip the next two stages and go to stage 5. 3. Has the employer shown a potentially fair reason for the dismissal? 1. Burden on proof on employer to show this. Misconduct/reundarncy is a potentially fair reason. 4. If there is a potentially fair reason, has the employer acted reasonably or unreasonably? 1. Only here we look at fairness. Legislation has been read as a reasonableness. Finding of fact by tribunal. In addition to substantive action by employer (such as redundancy), employer might fall down because it was procedurally unfair (not given employee a chance to explain actions), 2. Substantive and procedurally fair. 5) What remedies are available to the employee who has been unfairly dismissed?

Answer 120

* the employee is entitled to be paid during the notice period: ‘Wages’ were a payment for services rendered through the employment. A payment in lieu of notice arose from the termination of the employment contract not from a request for payment for services done, rather than to the provision of services by the employee, and were not ‘wages’.

Answer 121

**Redundancy** – respect to the managerial prerogative – no investigation into the rights and wrongs of the redundancy itself (does not prejudge the possibility of an unfair dismissal of the individual employee). EAT said it was a decision of management to close the factory, this was the fact of redundancy and there cannot be investigations of the right and wrongs of the redundancy.

Answer 122

What is summary dismissal?

Answer 123

automatic and insensitive redundancy consultation will lead to UD . employer must genuinely apply his/her mind to the issue of who should be in the pool for redundancy

Answer 124

With Resignation, can the contract provide a longer period of notice?

Answer 125

Thomas v BNP

Answer 126

What is controversal about eh 2 years qualifying period?

Answer 127

General criticisms of the band of reasonable responces test:

Answer 128

Delaney v Staples

Answer 129

McBride ## Footnote **SUPREME COURT**

Answer 130

Iceland v Jones

Answer 131

Wilson v Racher

Answer 132

A bank dismissed an employee who was suspected of dishonesty after they carried out an investigation. Tribunal said: big organisation not a sufficient enquiry – outside reasonable responses CA took the view that this was the ET substituting itself as the employer, it should have applied standard of reasonable employer, not reasonable tribunal could have found it was not within reasonable responses because bank had conducted an enquiry. The bank had not found any other employee might have committed the crime and this is what a reasonable employer might have dismissed. **Critcisism:** This was inhouse, not reported to the police. This would have been on their record if being dismissed. Perhaps a better investigation should have taken place

Answer 133

Automatically unfair reasons * Where the employee has two years or more continuious employemnt, the normal rule applies, namely it is for the employer to show the reason for dismissal. * However, where the employee has less than two years’ service: he or she will acquire the burden of proving that the reason for dismissal was an automatically unfair reason.

Answer 134

Gunton v Richmond CA The "Gunton extension"

Answer 135

What percentage of employees are re-employed/ re-enageged?

Answer 136

Sarkar v West London

Answer 137

Only **qualifying employees**

Answer 138

Kwik-Fit v Lineham

Answer 139

Moon v Homeworthy Furniture

Answer 140

The procedure all turns on the reasonableness test: if other employers would have dismimssed the individual without conducting any kind of procedure, then it may be within the band of reasonable responses to do so. However, the ACAS Code discourages this, The reasonableness of the dismissal is based on a test of substantive fairness. However, the test in ERA s98(4) also encompasses **procedural fairness** i.e. the employer should follow reasonable procedural steps prior to making a dismissal. The requirement of a fair procedure accords with ‘equity’ and natural justice: * adherence to proper procedures is an essential requirement of fairness – is within the band of reasonable responses If there is a serious violation of procedures (employer not following their own procedures ) the ACAS Code of Practise can give ET power to raise awards by no more than 25%

Answer 141

Morrow v Safeway Stores

Answer 142

the burden of proof is on the employee to show there has been a dismissal. "Whatever the respective actions of the employer and employee at the time of termination, **the question always remains ‘who really terminated the contract of employment?’"** * If there is such as a big argument, one party says you are fire, another says you resign. In this situation, the test is: This will be a finding of fact by the tribunal

Answer 143

Dismissal without notice

Answer 144

Abernethy v Mott

Answer 145

sexual harassment by employer in context was a fundamental breach.

Answer 146

Is an automatically unfair reason discrimination?

Answer 147

In a case involving a constructive dismissal – which involves misconduct by the employer – it is important to separate out the issue of dismissal from that of fairness. It is still possible that the employer may be able to show a potentially fair reason for dismissal and satisfy the reasonableness test. * The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. * But the issue of substantive fairness of dismissl is a seperate question. * Although the university breached the relationship of mutual trust and confidence (which is a fundamental breach of contract so constructive dismissal). **If breach of mutual trust and confidence it will create strong presumption that this is an UD in the fact that a reasonable employer would not have breached mutual trust and confidence.**

Answer 148

What are the two conditions that must be met to obtain an injunction (Wrongful dismissal) if the employer choses not to accept the breach?

Answer 149

ill-health (capability) dismissal – Q: how long before it is reasonable to dismiss? A: whether any reasonable employer would have waited longer before dismissing the employee. If enough employers would have dismissed after a period of time (Evidence perhaps) then a fair dismissal.

Answer 150

abusive and insulting language by employer in context was a fundamental breach.

Answer 151

Buckland v Bournemouth University CA

Answer 152

Temple Bird

Answer 153

Redbridge v Fishman

Answer 154

In wrongful dismissal, if you are an employee will you bring your case to the ET or in the civil courts?

Answer 155

Sanders v Ernest

Answer 156

Hadjioannou

Answer 157

Harper v Virgin Net

Answer 158

Murray v Foyle Meats HL;

Answer 159

Williams v Compair Maxam

Answer 160

use of league tables - requirement of transparency use of league tables should be based on objective criteria.

Answer 161

**Misconduct case: RIB** * Laid down the basic test for misconduct cases. * The employer must have reasonable suspicion amounting to a believe in the guilt of the employee in the misconduct _at the time of dismissal_ * It is not a subjective whim, but reasonable suspicion amounting to belief. To show that the dismissal was fair there are three elements: 1. employer must have belief in the guilt of the employee 2. reasonable grounds to sustain that belief 3. the employer must have carried out as much invesitgation as is reasonable in the case to form the belief. There must be: reasonableness in suspicion and reasonableness in investigation. Having done this, it can then be decided whether the employer has reasonably dismissed an employee.

Answer 162

**Established:** 1. The aim of an award of damages is to place the claimant in the same situation as if the contract had been properly performed. 2. In addition, damages at common law can only be awarded for **financial loss** caused by breach of contract not for injured feelings, mental distress or damage to reputation stigma damages and damages for harm to reputation or hurt feelings - are not recoverable in a wrongful dismissal claim, though they may be reocverable in other types of breach of contract claim, as in Malik. * It was held in Johnson v Unisys - that Addis only precluded claims for hurt feelings and damage to reputation arising from the fact of dismissal itself. Since Johnson was claiming for a breach of the impied term of mutual trust and confidence, the Addis ruling did not govern his case.

Answer 163

Practicable - not the same as possible: ## Footnote If close relationship in employment (strong relationship of trust in small business perhaps), and not possible to reengage them to another position, only where close relationship reinstatement would only be practical in few situations. **SAID OBITER:** It was not realistic to make an order of this nature in a case where the parties involved were in close personal relationship to each other as they were in the present situation. It is one thing to make an order for reinstatement where the employee concerned works in a factory or other substantial organisation. It is another to do so in the case of a small employer with few staff. Where there must exist a close personal relationship as is the case here, reinstatement can only be appropriate in exceptional circumstances and to enforce it upon a reluctant employer is not a course which an Industrial Tribunal should pursue unless persuaded by powerful evidence that it would succeed.”

Answer 164

**Wrongful dismissal** ## Footnote – trust and confidence remained.

Answer 165

if the employer commits a repudiatory breach of contract, the qualifying employee is entitled to resign without notice, ERA s86(6) - * giving rise to a claim for unfair dismissal and/or discriminatory dismissal

Answer 166

* **Common law** dismissal action * **worker** * employer has terminated his emploer **in breach of contract** * Claim can be brought in civil courts if worker or ET if an employee (remedy of damages is capped at £25,000 - but no cap in the civil courts).

Answer 167

Horst [1997]

Answer 168

Sothern v Franks

Answer 169

Salford Royal NHS Trust v Roldan CA

Answer 170

breach of Equality Act is a repudiatory breach

Answer 171

inconsistency of treatment does not necessary mean unfair dismissal. ## Footnote A colleague who had been involved in incident along with employee, one was dismissed, one was given a written warning. Held: within bound of reasonable responses because there were some differences between the case.

Answer 172

Employers must also have regard to the ACAS Code of Practice on ‘Disciplinary and Grievance Procedures’. SUMMARY DISMISSAL * The use of obscene language by a normally efficient employee on a solitary occasion when severely provoked by his employer would not justify dismissal. **Facts:** W was employed by R as a gardener; he was diligent and efficient and did nothing which could be regarded as blameworthy by a reasonable employer. When R aggressively and provocatively criticised W for trivial reasons, W attempted to walk away but in the face of continued unjustified criticism used obscene language to R in front of R’s wife and children. As a result R dismissed W. R appealed against the county court judge’s finding that the dismissal was unfair. Held: Bad language and outburst, but employer also been abusing and outcome was that this was found not sufficient to justify summery dismissal.

Answer 173

What are the three automatically unfair dismissal categories?

Answer 174

Williams v Watsons

Answer 175

Western Excavating v Sharp CA

Answer 176

Collins points out that dismissal may be fair even though they can be seen as "harsh". E.g. where an empployee asks the boss if he can leave early because his wife is ill. The boss agrees but later on another member of staff see the employee at the pub. Although the employee has never done anything wrong before, the employer takes the view that the employee is not to be trusted and dismisses him. (_This is similar to what happened in Foley)._ The band of reasonable responses test means that once a tribunal has found that some employees would dismiss in this situation, the dismissal is not unfair, even if other employers would have imposed a lesser penalty.

Answer 177

it can be fair to dismiss on the recommendations of an external consultant. The bringing in the external consultant might be to show who should be dismissed.

Answer 178

The general rule at common law is that the courts will not enforce a contract of employment either directly by specific performance or grant of an injunction:

Answer 179

Bass Leisure v Thomas

Answer 180

Logan v Celyn House

Answer 181

Approved the Safeway Stores v Burrell test * approved factual test: was dismissal attributable to a diminution in the employer’s need for the employees?

Answer 182

**Wrongful dismissal: applied Addis** must take account of limits arising from unfair dismissal legislation – known as the ‘Johnson exclusion zone’ * This did not overule its HL earlier decision in the Malik case

Answer 183

‘stigma damages’ could be awarded in exceptional cases **Facts:** * Malik was a senior executive, not at fault, he could not have known about fraud. * He argued wrongful dismissal on amount owed to him and he sought additional compensation due to the stagma attached to him from being at senior level in band. * HOUSE OF LORDS held: stigma damages could be award.

Answer 184

Compensation for UD ETs have a wide discretion to award what is ‘just and equitable’. But there are limits on the ET’s discretion – only compensation for financial loss: * **HL rejected award for injury to feelings**

Answer 185

Simmonds v Milford

Answer 186

activities outside work – proportionality test under HRA may be applied. ## Footnote probation officer who worked with sex offenders and their victims. He was dismissed because employer was concerned yhat in his own time, he was interested in sadomasicatistic things. **Employee's argument:** freedom of expression, Proportionality was considered because there was a link to the human rights act. But ultimately found to be a fair dismissal, because court put together the proportionality and reasonable responses test.

Answer 187

* **Statutory dismissal action** * brought by the **employee** * subject to **qualifying conditions**

Answer 188

NHS v Pillar

Answer 189

Unfair dismissal - which court can it be brought?

Answer 190

**What is reinstatement?** This decision confirms that a reinstatement order can preserve the status quo which existed prior to dismissal even though this differed from the employee’s terms and conditions of employment.**FACTS:** * McBridge was a fingerprint officer who took a fingerprint at a murder scene which then led to an acquittal. There was an investigation and McBride was given restricted duties (even though no misconduct was found). * It was then suggested that she would be redeployed. She refused and was dismissed. Found: 1. Unfair dimissal, and she should have been reinstated. SC found tribunal was entitled to order reinstatement. **Guidance by SC:** 1. In reinstatement, it does not require recreation of every precise factual condition at point of dismissal. Therefore, a new manager could be given to deal with the situation and deal with future conflicts. New guidance by SC suggests reinstatement might be taken more seriously as an option because conclict can be avoided.

Answer 191

– cumulative acts over time, little insults, remarks to undermine the employee. In context, it was a breach of mutual trust and confidence.

Answer 192

MBNA v Jones

Answer 193

**Redundancy:** – what is ‘work of a particular kind’? Ask whether: * was a ‘reduced headcount’ because some employees were switched to part-time contracts even though the same number of employees . **Facts:** Employer suffered downturn and bought software which reduced the number of hours his bookkeeper needed to work. Employer sought to persuade the C to reduce her contracted hours significantly but C refused and she was given notice of dismissal. ET Held: The reason for the dismissal was redundancy, rejecting the assertion that because there had been no reduction in the number of employees required (C still being required, just on shorter hours), there could be no redundancy situation. EAT agreed

Answer 194

Is redundancy a potentially fair reason under unfair dismissal law?

Answer 195

More Difference between Wrongful dismissal and unfair dismissal?

Answer 196

Polkey v Dayton ## Footnote **House of lords** **"polkey guidance"**

Answer 197

**Wrongful dismissal** Damages cannot be awarded for loss of opportunity to claim for ‘unfair dismissal’:

Answer 198

Constructive dismissal

Answer 199

Standard of fairness is the same if it is an SOSR dismissal:

Answer 200

NO! The only automatically unfair discrimination is in ERA s99. This does not include discrimination such as race.

Answer 201

**Redundancy:** what is ‘work of a particular kind’? work was ‘too good and too slow’ – dismissal was not a redundancy – the employer’s needs for ‘work of a particular kind’ had not changed

Answer 202

James v Tipper

Answer 203

Irwin ## Footnote **House of Lords**

Answer 204

in the case of **workers** the notice period if always determined by the contract.

Answer 205

breach of procedure must be specified for a finding of unfair dismissal to stand on grounds of absence of procedure, there must be clarity on what the procedure should have been and how the employer failed to follow that procedure.

Answer 206

* There is an exception to the general rule in Whitwood Chemical v Hardimon. **Elective rule of termination** at common law – an employee chooses whether to accept the employer’s repudiatory breach: Basis rule is still Hardiman, but there is now an exception in elective rule of termination.

Answer 207

What did Sedley J stress in the case of Buckland?

Answer 208

B.S. v Dundee CC

Answer 209

**Misconduct case:** reasonable belief in guilt even if the employee may have been innocent – dismissal within band of reasonable responses. * Theft from a betting shop - only two employees on duty. * Employer was sufficiently suspicious of them both. * Found: on evidence that the tribunal was entitled to find the employer had a reasonable suspicion at the time of dismissal, even though it was possible that the employees were innocent. * The dismissal was in the band of reasonable responses

Answer 210

‘band of reasonable responses’ test applied in a case of suspected misconduct

Answer 211

Leach v OFCOM **COURT OF APPEAL**

Answer 212

Davis suggested three categories for UD. However, she notices that the legislator did not make seperate provisions in relation to each right. This approach, she said was "unnecessarily complicated" and there was a risk that it might fail to provide comprehensive protection.

Answer 213

The qualifying period has changed over the life of the legislation, from 6 months, to one year, to the current two years. It is thus subject to controversy, One of the main advantages to the qualifying period from the employer's point of view is that it gives some time within which to assess the employee's suitability for the job, safe in the knowledge that the relationship can be terminated within less risk of litigation. It also encourages job creation

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